Garza v. State

Citation48 S.W.2d 625
Decision Date19 November 1930
Docket NumberNo. 13670.,13670.
PartiesGARZA v. STATE.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

Appeal from District Court, Sutton County; Joe G. Montague, Judge.

Paul Garza was convicted for possessing intoxicating liquor for purposes of sale, and he appeals.

Reversed and remanded.

R. G. Hughes, of San Angelo, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

LATTIMORE, J.

Conviction for possessing intoxicating liquor for purposes of sale; punishment, one year and six months in the penitentiary.

We find in the record three bills of exception. Bill No. 1 presents the appellant's exception to the refusal of the trial court to quash the indictment because, as set out at length, he insists that the special judge, who presided at the term at which the indictment was returned, was not legally elected, and was therefore not qualified. We have examined the bill and also the testimony adduced upon the hearing of the motion to quash, and are of opinion that the action of the trial court in declining the motion was correct. The fact that it took the vote of the county judge and the district attorney who were disqualified, by reason of holding other offices probably, from themselves being selected to act as said special judge, to make up the majority of the votes cast for the special judge at the election ordered because of the illness of the regular judge at the opening of the term, would not furnish ground for claiming that said special judge was not elected by a majority of the attorneys present at the opening of court.

Bill No. 2 presents appellant's objection to the testimony of the officer who searched appellant's premises and found thereon intoxicating liquor. It seems to be claimed that the affidavit for the search warrant in this case did not sufficiently state that appellant's residence was a place where intoxicating liquor was being sold and manufactured. As we understand it, the affidavit directly alleges that said dwelling was a place where whisky, wine, beer, etc., "are illegally possessed, sold and manufactured in said private dwelling, in violation of the law"; hence there is no merit in the contention.

The third bill was to the introduction of the testimony of the searching officers because of supposed defects in the affidavit for the search warrant. Appellant asserts that the description of the premises is too uncertain and indefinite. The affidavit describes the premises as a certain private dwelling occupied and controlled by Paul Garza as his residence, located on lots 7, 8, 9, 10, 11, and 12, block G, Sinaloa addition to the town of Sonora, Tex. We think this is a sufficient description.

It is next complained that the search warrant itself is uncertain and indefinite in its attempted description of the article or thing for which search was to be made. The search warrant commanded search of the premises described for intoxicating liquor and instrumentalities as described in the affidavit. We think this a sufficient command of the search warrant. It is also asserted that the affidavit shows on its face to be based on information and belief. We find in the affidavit, and stated as a part thereof, that one of the affiants says he personally saw a man leaving appellant's house with beer which he claimed to have purchased therein. We think the affidavit not open to this objection. The facts in evidence appear to be sufficient to justify the verdict. We have examined the brief and the authorities on file for the appellant, but do not find ourselves able to agree with the contentions made.

No error appearing, the judgment will be affirmed.

HAWKINS, J., absent.

On Motion for Rehearing.

MORROW, P. J.

The admissibility of the testimony of the searching officers is challenged upon the ground that the affidavit under which the search warrant was obtained did not show probable cause for the search. The part of the affidavit deemed necessary to the decision of the question is as follows:

"We, J. L. Cook and J. K. Lancaster, each, do solemnly swear that we have reason to believe and do believe, there is on this date a certain private dwelling occupied and controlled by Paul Garza as his residence; that said dwelling is located, Lots 7, 8, 9, 10, 11 & 12, Block G. Sinaloa Add'n. to town of Sonora, Texas, in the County of Sutton and State of Texas, and that whisky, wine, beer, mash, the same being intoxicating liquors, are illegally possessed, sold and manufactured in said private dwelling, in violation of the law, by Paul Garza. * * * This affidavit is based upon the following facts, circumstances and information, to-wit:

"J. L. Cook says he personally saw a man leave the house aforementioned with some beer he claimed to have purchased therein."

The gravamen of the attack is the contention that the magistrate was not authorized to issue the search warrant for the reason that the affidavit did not identify the date or time of the discovery of the unlawful conduct of the accused.

The affidavit for a search warrant on probable cause, based on information and belief, should in some manner, by averment of date or otherwise, show that the event or circumstance constituting probable cause occurred at a time not so remote from the date of the affidavit as to render it improbable that the alleged violation of law authorizing the search was extant at the time the application for the search warrant was made.

The necessity for data in the affidavit for a search warrant showing that the claimed probable cause is not based upon an incident remote in point of time is illustrated in a concrete manner by many cases. See People v. Chippewa Circuit Judge, 226 Mich. 326, 197 N. W. 539, in which it was said: "The right to issue a search warrant rests upon facts existing at the time the showing is made for the warrant. This is made clear by the Constitution and every statutory provision with reference to search warrants." See, also, People v. Mushlock, 226 Mich. 600, 198 N. W. 203.

The point is also illustrated by the Court of Appeals of Kentucky, in the case of Commonwealth v. Dincler, 201 Ky. 129, 255 S. W. 1042, from which we quote the affidavit for the search warrant and the...

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22 cases
  • Peterson v. State
    • United States
    • Maryland Court of Appeals
    • November 1, 1977
    ...probable cause." III We find most cogent the expression of the rule regarding stale probable cause as set out in Garza v. State, 120 Tex.Cr. 147, 48 S.W.2d 625 (1932): "The affidavit for a search warrant on probable cause, based on information and belief, should in some manner, by averment ......
  • State v. Richards
    • United States
    • Missouri Supreme Court
    • December 20, 1933
  • People v. Beshany
    • United States
    • New York Supreme Court
    • July 13, 1964
    ...Ky.1961, 347 S.W.2d 546, 548; State v. Dondis, 111 Me. 17, 87 A. 478, 479; People v. Musk 231 Mich. 187, 203 N.W. 865; Garza v. State, 120 Tex.Cr.R. 147, 48 S.W.2d 625). The same defect underlies the orders of October 10, 1963 and October 21, 1963, respectively, since they were issued upon ......
  • GILMORE v. The State of Tex.
    • United States
    • Texas Court of Appeals
    • August 12, 2010
    ...is well established that a search warrant cannot be issued based on facts which occurred at too remote a time. See Garza v. State, 120 Tex.Crim. 147, 48 S.W.2d 625, 626 (1932); Serrano v. State, 123 S.W.3d 53, 60 (Tex.App.-Austin 2003, pet. ref'd). A probable cause affidavit is “inadequate ......
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